Resolute

iTrader: (2)

I have been threatened with a civil lawsuit, and need some good counsel from a civil attorney who handles fraud cases. I don't know a lawyer, never needed a lawyer, and would just as soon pay a recommended lawyer as pick a random firm out of the phone book. So, please let me know if you know of a good firm that handles civil cases, and I'll give them a call.

Here's the story:

I bought a 2004 mini-van last May from a used car dealership. The van was in good shape and had low miles. I paid cash, and was told the van still had a factory warranty. While I owned it, the van needed several repairs for an engine issue which the manufacturer couldn't fix, even after five trips to the repair shop. The last service trip was January, and the manufacturer let me know there is no longer a factory warranty on the van because the van has a branded title in Washington state for false odometer reading. I get all the information and title history on the van from Washington, and sure enough, the van has odometer discrepancy and the title was branded as such. My Colorado title was not branded, and says "actual mileage". I also look through my sales paperwork, and there is no odometer disclosure statement. So, I call the used car dealer I bought the van from, and let them know the issue, and the owner refuses to talk to me. He claimed it is not his issue, and I need to take this up with the manufacturer to get a warranty reinstated. He never mentioned the odometer or title issue. I file a complaint with the Colorado Auto Dealer Licensing Board, submit my evidence against the dealer, and the state proceeds with an investigation. I am right, the dealer screwed up, and the dealer agrees to take the van back and give me my money back rather than proceed with the investigation. The dealer asks for compensation for the 9 months I had the van and for the 6k miles drove it. I agree to take $250 off the refund amount to cover a cracked windshield, and nothing else. As far as I am concerned, the only reason I have 9 months of use in this van is because the dealer was dishonest and it took 9 months to find out the truth. The dealer made the mistake, and I shouldn't have to pay for that. If they were honest in the beginning, I would never have bought the van. The dealership owner never discusses this with me or made a case as to why I should compensate him for the use I put on the van. The sales man simply called one day and asked if I would be willing to compensate them, and I said "no", and the salesman said "ok", and that was the end of it. I dropped off the van, the salesman looked it over, didn't say anything looked wrong or worn beyond normal wear, and gave me a check already written out to me for my refund. Good riddance, except the investigator informs me that while this closes the investigation against the dealer, the dealership owner is probably going to take civil action against me for the time I had the van. The investigator says he told the owner that there wasn't much of a case (he said the owner doesn't have a leg to stand on) but the owner doesn't care. The dealership owner wants to see me pay one way or another. His exact words to the investigator were, "I can afford a lawsuit, and I'm betting he can't." The owner is expecting me to settle for a few thousand rather than actually go to court. The investigator told me to keep his name and number handy, and that any decent lawyer will subpoena him for the evidence against the dealer, and that I shouldn't have a problem winning. But, the hassle might not be worth it as opposed to settling, which is what the owner is planning on.

So, I have several legal questions for a lawyer, such as-
What is the statute of limitations that exists on this case, or how long does he have to sue me?
What should I do to prepare for this?
If it goes to court and I win, can I get the dealership owner to pay for my legal defense and court fees?
Is it even legal for this guy to sue me after he accepted the van back and refunded my money, doesn't that end the matter?
This is nothing more than a lawsuit designed to hurt me for filing the investigation against him, which I won and was in the right, so isn't this harassment?

If any of you know of, or are, a good lawyer that handles civil cases in Colorado, please let me know so I can get this sorted out. Thanks,

Will

JZurita

iTrader: (29)

Good luck with that.

funkymonkey1111

call Tony Johnson at Retherford, Mullen, Johnson & Bruce and tell him David Wilson from Denver said to call. If he can't help you, he'll tell you who can in the Springs. If that doesn't work out, shoot me a PM

Resolute

iTrader: (2)

I will look them up and call them first thing on Monday. Thanks for the referral!

Will

myspivey

iTrader: (5)

Yep, ill call a couple people. Come from a family of lawyers so we know a few. Sounds like you have a pretty good case so i wouldnt worry to much man. Sounds like he wants to play hardball, not terribly tough, just frustrating to deal with.

Resolute

iTrader: (2)

It's a real pain, and I'm trying not to worry about this, but it's pretty intimidating to think about the lawsuit. Right now I'm just venting my frustration with this dealer all over the place, but I'm also genuinely concerned. The dealer is right, I don't have the funds to just hash this out in court, so I might have to settle for the one or two grand he's looking for and avoid the lawsuit altogether. But he was wrong, no two ways around it. He took the van back and refunded my money because he knew he was caught in the wrong, and if he didn't satisfy my complaint, the investigation would go through and he would face a heavy fine (dealer said at least a 10k fine), possible 30 day suspension of his dealer license, and have to buy the van back from me anyways. The Auto Dealer Licensing Board started the investigation, and told the dealer he would be a fool not to settle this with me and buy the van, in light of the case I had against him. The investigator told me straight up that the dealer was going to buy the van back because it was in his best interest to do so, since I, "had a very strong case against him for deception and fraud... the evidence is pretty compelling and the dealership owner doesn't have a leg to stand on in the matter." My wife and I even considered letting the case go to investigation and letting the dealer get whatever penalty the State AG office would hand him, but he accepted the van back for full refund minus the cost of a cracked windshield, and that struck as fair. So, the dealer bought the van back and the complaint was filed as "resolved", so no further investigation or action against the dealer by the Licensing Board or AG office. Now, to think that the dealer is going to try and sue me to get *some* money back, because he doesn't mind spending the money to file suit, simply because he's pissed I fought him on the issue? I don't understand that kind of thinking, when the dealer clearly acknowledges he's wrong and settles the issue to avoid investigation, but wants me to pay simply because he can make me with a civil suit. Man, used car dealers living up to their bad rep FTL!!!

Will

Darrel

You know where there's one fraud there will probably be others. Even though it was resolved according to the board, you could always call up one of the TV stations to let them know what's going on. What car lot was it?

Was there a car fax run on it? Some people think it's a waste of time but car fax might have caught it to begin with. I'm sure there are enough people on various car forums that would be glad to run them for you if they have any left.

Bottom

iTrader: (1)

Will: Good luck with case. It sounds like you'll be okay, but I can just imagine how much of a pain in the *** this is.

Two words "The Strongarm". Just kidding, I dont' know who bugs me more, the Used Car Salesmen or Cheesy Lawyers.

David

Resolute

iTrader: (2)

Yeah the TV angle has come up. One of my good friends is dating the daughter of a local TV reporter. This same reporter did a special on our foster son last year, so it would make a pretty compelling follow-up story. Something along the lines of, "the family of the medically fragile child we reported on last year is getting screwed by dirty used car dealer" would be nice.

I'm not sure if I should say the used car dealer's name or not right now, since I have no idea how these things are handled or what might bite me later if this goes all the way to court.

Carfax was clean at the time, but the title was branded as odometer fraud in Washington right before going to auction, less than two months before I bought it. So, Carfax wasn't up-to-date on the info. At the time I bought it, only the auction company, the state of Washington, and the used car dealer new it was branded for odometer discrepancy. The vehicle manufacturer didn't even know about it until 7 months later.

I'm going to give the lawfirm a call on monday, and if Spivey has some recommended lawyers, give them a call as well. I have not deposited the check the dealer gave me for the van yet, I figure that's another question I have for the lawyers. If I don't deposit it, then the transaction hasn't been closed yet, which may or may not be beneficial. I just don't know.

Will

Darrel

Wow, so the dealer was trying to stay ahead of the game by flipping it and knew all along. He was definitely trying to pull a fast one. Try pulling another car fax to see if it's caught up yet.

If cf hasn't caught up and the car is still on the lot, have a friend go by and act like a buyer. If he still tries to sell it as clean title then I am sure a tv station would be interested in the dealer to keep an eye on.

Was it a dealership or one of those small here today gone tomorrow used car dealership?

pssst, you can pm me the name of the used car lot. ;-)

Resolute

iTrader: (2)

It's a small outfit, but they have been in business for almost 20 years or so. No negative feedback with the BBB, no registered complaints.

The dealer knew the title was branded, and that it was for a false odometer. They never even denied it. When I finally tracked down the title history of the van, and saw that the dealer purchased the vehicle from auction knowing it was a branded title and did not have accurate odometer reading, the owner said it was a "clerical error" on the part of Colorado. They bought the van, then sent the Washington title to the Colorado DMV to have it changed into their name for ownership. The CO title that was issued back to them was clean and not correct. The owner says they didn't think twice about it and "accidentally" sold the van with the incorrect clean title. Now, it was a mistake on the DMV to issue a clean title in the dealer's name, and not carry over the fact that the actual mileage on the van is not known. However, my theory is that when the dealership received a clean title back, they figured to sell it as a clean vehicle and figured no one would be the wiser. Huge profit for them, since the van is only worth a 1/3 of the NADA amount, and that's all they paid for it at auction. That explains why they "forgot" to include the federally mandated odometer disclosure statement with the sale, so as to avoid outright fraud by certifying the mileage was accurate. By not giving me the disclosure statement, they saved themselves a huge legal mess should the truth about the title history ever come to light. What they didn't expect was to have the manufacturer void the warranty for a vehicle with inaccurate mileage on the odometer. This is what brought the whole thing to light. Either way, whether they just "forgot" or not, the dealership is liable for selling me a van with inaccurate mileage that they knew about. The dealer never denied the wrongdoing. What the owner is pissed about is the fact that I had the van for 9 months and 6k miles, and he doesn't think he should give me a full refund. I disagree, and the Auto Dealer Licensing Board says the law is on my side. Dealer's mistake is the dealer's loss in this case. So, the dealership owner is suing me for what he thinks I should compensate him for, figuring I'll just settle rather than go to court. This way he avoids the criminal investigation from the licensing board, by settling the complaint with a full refund, and then gets his compensation in a civil suite outside of the licensing board's authority.

Carfax is caught up now, and has the information associated with the VIN.

Will

usmanasif

iTrader: (4)

Best of luck with this Will. Wish I knew any good lawyers to recommend. One thing I would say though is to NEVER mention the name of the dealership to anyone except your attorney. If the owner is this pissed off, he will add a defamation of character and libel charge onto the suit.

I can imagine how frustrating this episode must be for you. Hang in there and this too, shall pass.

Lawy'dU

iTrader: (1)

Advice: (not legal since it would be unethical to give legal advice other than an attorney practicing in your state)

1. It sounds like the van was a POS, restitution for the time that you had the van would be very small.

2. What does the ruling by the board say on your claim? That itself should give you a set of counterclaims to sue the bastard dealership and show you what the dealer can collect.

3. If the board did not require you to pay restitution for the time you reaped the benefit of the vehicle (unjust enrichment), logically, you shouldn't be obligated to pay restitution for a mistake not on your part.

4. Make sure you have everything documented, and while you can still remember, write down the details of every conversation you had regarding this vehicle, dating each entry in a log book. If you do go to trial you will need this.

5. It is everyone's right to sue, regardless of whether the claim has grounds or not. You need to be prepared to find an attorney. Talk to people in your area, not on the forums to figure this out. However, until this guy files his complaint you can really do nothing but seek advice from an attorney.

6. The statute of limitations varies per each jurisdiction's (state's) local rules. You can more than likely figure this out on google or go to the library and jump on lexus or westlaw and find this out. Usually for civil cases the statute of limitations is two years, sometimes three if it involves a tort. The statute of limitations started though when you returned the car and received your refund.

7. Do some case searching to find what the common law (case law) in your jurisdiction has held in regards to these issues. This will give you the precedent for these cases and will give you an indication on how strong your and your opponent's arguments are

8. Relax, and don't give the dealership anything that you don't think is right. The best thing you can do is demonstrate good faith in resolving this matter (this will provide ample support for your defense if you go to trial).

9. If he files a suit, you already need to get an attorney and you will be spending the money. While you are spending the money, make sure you counter claim for breach of contract, misrepresentation, and fraud. The dealer should be the one paying you in the end.

10. I don't know the facts of this case, but these are the best tips I can provide you at this point.

- Justin

mrg1981

iTrader: (2)

Well, that sums up a lot of what I was going to say as well. Well said.

A few more items. As Justin said, you showed good faith by discounting the $250 for the cracked windshield and the dealership agreed to pay you for that amount, knowing that you had the car for 9 months. This is not a situation where you refused to pay them. This is a situation where they paid you and now they say they shouldn't have paid you as much. Quite lacking in merit, if you ask me. I wouldn't sweat it.

The dealership was angry and threatened to sue. Do a quick consultation with an attorney, but don't waste a bunch of money at this point, because there is a chance that there will never be a lawsuit. As mentioned, you would probably end up with a settlement in your favor and a judgment as well.

You can call Allen, Vahrenwald, and Johnson at (970) 482-5058. Tell them that Marshall from Discount Payment Services/Fort Collins Commerce Bank referred you. They are in Fort Collins, so I think that's not too far. I admittedly don't know CO geography.

Best of luck.

Mike Wazowski

iTrader: (113)

I know someone that can make this whole thing go away Will.

It will cost nothing more than a round trip airplane ticket from San Diego, a place to stay and $100.00 in small bills...

funkymonkey1111

You mean like when he got on a regional board and asked members he knows from tech days and track days, and two people with knowledge of colorado lawyers responded, or when somebody from maryland or san diego weighed in?

Resolute

iTrader: (2)

Thanks for your comments. I am not so foolish as to take legal advice over the internet, and am seeking good referrals from people that know/are/have used a civil lawyer. Hence, I posted this in my regional forum.

You've given me a lot more specific factors to research, though, and I really do appreciate it. I've been looking to find the statute of limitations and it seems that the guy has two years to take action. That's a long time to wait and see.

I have no doubt the case will win in my favor, the owner was in the wrong, the DA office concluded he was wrong, and I have my refund. What I doubt, is that it will go to court. The owner is pretty vindictive, and really thinks that it's worth his time and effort to get a few grand back out of me. The DA office investigator for the Colorado Auto Dealer Licensing Board has already said he would testify on my behalf about his findings against the dealer, but if the dealer sues for one or two grand, it would probably be cheaper to settle and pay him. That's what the dealer is counting on. If I try and countersue for damages, then can the dealer just drop his suite against me and end it, leaving me stuck paying for the lawyer's time to counter-file? The dealer already paid me back and took the van back, doesn't that end this? Is filing a lawsuit against me for "payback" considered harassment? I'm not expecting an answer on the forums, just giving an idea as to the questions I have for a lawyer. So, if anyone else can recommend one, please do. Make sure it's civil, one firm I was referred to does criminal defense. They were friendly, but not ready to answer the questions I have about this case.

Will

Resolute

iTrader: (2)

Thanks for the referral! Ft Collins is a ways away, but maybe they know someone here in the Springs. I'll call.

Will

Resolute

iTrader: (2)

LOL, ummm... I guess I don't want to know.

Will

shamrokDPR

iTrader: (1)

Just my two cents, but take the money you received for the van and use it to get a good lawyer if you do get served... then simply counter sue for lawyer fees and loss of wages. You will come out on top, especially if you have the investigator on your side willing to step forward.